The Strange Verdict of the General with a Checkered Past

Back when they got along: Perišić and Milošević

Momčilo Perišić is the latest of a series of high ranking inmates at the ICTY that have been freed by the court. The last time I recall him being released was from his duties as Serbia’s Deputy Prime Minister in the first DOS government of Zoran Djindjić. He had to resign after he was caught meeting a US embassy official at Motel šaric outside Belgrade in what looked a lot like a conspiratorial meeting. While the “spy” affair never was fully cleared up, it seems that Perišić tried to pass on incriminating documents against Milošević. It also served as ammunition for Vojislav Koštunica and his loyal army chief Pavković against Djindjić. Perišić broke with Milošević in 1998 over Kosovo, but already met student protestors in 1996-7 to assure them tanks would not be used. After his break with Milošević he created his “Movement for a Democratic Serbia” and joined DOS. However, his movement was never more than a personal vehicle and once he was arrested and then dismissed as Deputy Prime Minister, he movement and political engagement came to end. It is thus ironic when a comment for Sense notes that “Momcilo Perisic was the only senior official from Serbia and FR Yugoslavia convicted by the Tribunal and sentenced for crimes in Bosnia and Herzegovina. Slobodan Milosevic was charged with the same crimes, and the judgment can be considered as Milosevic’s posthumous acquittal for Sarajevo and Srebrenica.”

The latest judgment is troubling in challenging a number of key findings of a number of earlier rulings of the ICTY about the linkages between the army of the RS (VRS) and the Yugoslav army. The key argument of the judgement is that the concept of “aiding and abetting” is only applicable, if it was directed towards committing crimes and it does not suffice if assistance was used to commit crimes. The understanding o the appeals chamber of the VRS leads to rather odd conclusions “Appeals Chamber agrees with the Trial Chamber that the VRS was not an organisation whose actions were criminal per se; instead, it was an army fighting a war. The Appeals Chamber notes the Trial Chamber’s finding that the VRS’s strategy was “inextricably linked to” crimes against civilians. However, the Trial Chamber did not find that all VRS activities in Sarajevo or Srebrenica were criminal in nature.” (para. 53).” This is reiterated later on: “VRS was participating in lawful combat activities and was not a purely criminal organisation.” This assessment is highly problematic. First, the purpose of the VRS seems hard to reconcile with lawful combat activities, second arguing that not all activities were criminal is about as convincing as stating that the Mafia is not only involved in criminal activities and thus supporting it does not mean that one is “aiding and abetting” criminal activities. I agree with the dissenting opinion of judge Liu who argued that “to insist on such a requirement [of a specific direction] now effectively raises the threshold for aiding and abetting liability. This shift risks undermining the very purpose of aiding and abetting liability by allowing those responsible for knowingly facilitating the most grievous crimes to evade responsibility for their acts.” (para.3). Liu also challenges the idea that even if the Trial Chamber did not consider the VRS a criminal organisation, it was found to have conducted “systematic criminal actions against Bosnian Muslim civilians” (para.4) and that Perišić know about the crimes committed by the VRS (as in fact anybody reading a good newspaper at the time did) (para. 8).

In brief, the decision suggest that you can provide crucial support including weapons to an organization conducting a war that committed “systematic criminal actions” and get free because you did not direct them specifically to commit these crimes.  Although the judges note (para. 72) that “that this conclusion should in no way be interpreted as enabling military leaders to deflect criminal liability by subcontracting the commission of criminal acts. If an ostensibly independent military group is proved to be under the control of officers in another military group, the latter can still be held responsible for crimes committed by their puppet forces,” it seems to have become a lot easier to do just that.

Does Serbia really want Ganic?

The arrest of Ejup Ganic in the UK has already been a big success for Serbia. Judging by the fact that I just gave an interview for a Chinese news magazine on the case, the arrest of Ganic has successfully overshadowed the beginning of the Karadzic trial.  The Prosecution in Serbia had opened an investigation into the Dobrovoljacka case in early 2009, but the timing of the arrest now is indicative: The case altogether seems political motivated to show to the domestic audience in Serbia that also non-Serbs are indicted for war crimes. The ICTY in The Hague had investigated the case and did not pursue it. There is furthermore a problem with Serbia indicting Ganic for an alleged war crime committed in Bosnia (which was internationally recognized at the time). While some of the victims were Serbs from Serbia, and Ganic is born in Serbia, the crime is primarily the responsibility of the Bosnian war crimes chamber.

The incident has already had a negative impact on relations between Bosnia and Serbia. This comes after a recent improvement following mediation by Turkey which resulted in both countries again exchanging ambassadors after relations had been managed at the level of charge d’affairs for years after Serbia rejected Bosnia’s candidates for ambassador to Serbia. It also comes after the Serbian president Tadic has reaffirmed Serbia’s support for the territorial integrity of Bosnia, which has been widely seen as an effort to reign in the nationalist statements by Milorad Dodik. Furthermore, there have been discussions in Serbia to pass a resolution in parliament to condemn the genocide in Srebrenica. Finally, the investigation and extradition request undermine the agreement on legal cooperation signed between Serbia and Bosnia just a few days ago. The argeement seeks to put an end to the ability of criminals to escape punishment by crossing the border to Serbia or Bosnia and hiding behind dual citizenship. A lot of this good will and progress created in recent months has been destroyed by the arrest.

More important might be the negative impact on Bosnia itself. The arrest and the case will be welcome ammunition in the election campaign in Bosnia–general elections are due in October: Serb politicians express their dismay at Bosnian state institutions seeking to defend Ganic, while Bosniak politicians accuse Serbia of fighting the same battles as during the war. Thus, it helps to remind of the war and incompatible political goals which will only help nationalists in the elections.

I am not certain that Serbia has the stomach or the will to really try Ganic in court.  The case is weak so either he would be sentenced in a clear mischarage of justice which would undermine internationally the domestic war crimes investigations and Serbia, or he would be released which would undermine the court domestically. Thus, if he is eventually released by the UK, or ‘extradited’ to Bosnia, Serbia has won. The authorities can once more claim that non-Serbs evade justice, but that Serbia tries all it can and that it can get to them even in the UK, not unlike the governments line of argument for Kosovo.

Curb your mens rea

After recently returning from an excellent conference at Indiana University on the Milosevic trial and watching the open statement of Radovan Karadzic at The Hague this morning, a number of issues regarding the work of the ICTY and the writing of history of the 1990s come to mind.

As a scholar, the ICTY court records have become a treasure trove of documents and evidence on the events of the 1990s. Thus, even when working on topics not related to the wars, there is much data available which is of interest, from party documents of 1990 to entire books and memoirs. Just like a real treasure trove, the data is hard to find and has to be searched by defendant (for example in the Boskovski case alone there are 1828 statements, documents, etc. available) and if one is not an avid trial watcher it is not easy to know where to find what.

However, beyond the ICTY as a source, how to approach the court as a researcher? First, the ICTY asks different questions than many of us researchers ask. We are often less interested in direct criminal responsibility than in the larger social processes. However, even if we are, the standards of evidence for historians or social scientists are different than in a court. We hardly ever have our sources cross-examined and we accept that evidence and lines of reasoning are challenged later on by colleagues (even if we might not like it) while the court seeks to render a final judgment which will send somebody to prison for years. Thus, the role of scholarship is less about judging and more about assessing. This does not mean moral ambivalence and there is no doubt that scholarship, especially when dealing with Yugoslavia’s disintegration in the 1990s, has to assess responsibility. Scholarship does not need a guilty verdict against Milosevic at the ICTY to identify him to be responsible for much of the war crimes committed in Croatia, Bosnia and Kosovo. While legitimate questions remain about specific instances, the overall picture is quiet clear.

Here emerges some discomfort: In the Milosevic case, the prosecution paid particular attention to the intention (mens rea), painting a picture of nationalism and commitment to Greater Serbia (a term I don’t find very helpful) to explain the acts perpetrated or ordered by Milosevic, Karadzic et al. Here there is an uneasy relationship between the work of a trial and scholarship. The prosecutor’s role has been to present a clear linear story of ideological commitment and crimes committed in accomplishing this goal. It is a narrative which nicely links motivation to acts. However, as scholar, I feel distinctly uneasy about such a linear narrative. In fact, I am reminded of a very different example from legal practice. Having provided some expert advice on asylum cases, a more experienced colleague told that in verifying the story of a refugees for its veracity key is to look out for inconsistencies and quirks in their story. These are not evidence of problems in their claims, but the opposite. If the narrative of persecution and flight is too straight forward, like it should be, alarm bells should go on. Human life is too complicated and, well, too individual to fit into the large narratives. What applies to refugees is also true for war criminals. It is less their long-hedged master plan which is convincing, but the opportunistic, short-term calculations which motivate crimes. Change and inconsistency rather than a clear strategy.  Furthermore, intention itself is very unsatisfying in a context when ill intent was very wide-spread. The key is who acted on it and who did not. If we take Vuk Draskovic’s statements in 1990 and 1991 (some even earlier), then his intentions appear much more dangerous than those of Milosevic and others. The commitment towards extreme nationalism, the hate speech towards other nations left little doubt about his intentions. Still, following a short engagement of his party’s paramilitaries in Croatia, he stopped supporting the war effort and became one of its main critics (more so than for example the currently governing DS in Serbia).

The current indictment against Karadzic and the opening statement by the prosecutor are largely encouraging in this regard as it does indeed focus on the crimes and not so much on the political pre-history. In court today, Karadzic tried to turn the prosecution’s case around by constructing a narrative of mens rea of the leadership of Slovenia, Croatia, the Bosnian Muslims and Croats and taking points from the prosecutions case and turning them around to replace his name with others. While the result was often a familiar conspiracy theory and distortion of historic events, there are legitimate disputes and conflicting arguments about the motivation to establish nation states and the dissolution of Yugoslavia. The fact that Slovenia and Croatia sought to leave Yugoslavia was understandable in the context at the time and there is certainly nothing to justify the use of force, but there are serious and legitimate political disputes at the heart of the Yugoslav conflict before it turned violent to which there is often no clear cut answer of right and wrong.

Thus, while the ICTY can contribute to the writing of history by disclosing chains of command, I am much more skeptical about the larger, linear narratives of mens rea which seem to run against the subtleties which scholarship has to identify.

Veljko in Florida?

Where’s Veljko?

A few years ago when looking to rent a flat in Belgrade, we nearly rented from Veljko Kadijevic daughter-in-law. She shared her outrage with us that he was wrongly maligned as the last minister of defense of Yugoslavia. Apparently the USA agrees.
As Blic reports, he is living in Florida, advising the Pentagon in Iraqi bunkers these days. Wasn’t that the same Kadijevic who was raving about the ‘foreign factors’ destroying Yugoslavia …

Needle in the haystack

I guess that Minister of Defense of SCG Zoran Stankovic took the metophor of parallels between finding Mladic and finding a needle in a hay stack a bit too literally.

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